United States District Court, D. Hawaii
ORDER AFFIRMING MAGISTRATE JUDGE'S (1) ORDER
DENYING PLAINTIFF'S MOTION FOR ISSUANCE OF LETTERS OF
REQUEST AND (2) MINUTE ORDER DENYING PLAINTIFF'S MOTION
C. KAY SR. UNITED STATES DISTRICT JUDGE.
reasons set forth below, the Court AFFIRMS the Order Denying
Plaintiff's Motion for Issuance of Letters of Request
dated May 13, 2019, ECF No. 16, and Minute Order Denying
Plaintiff's Motion for Reconsideration dated June 19,
2019, ECF No. 20, issued by Magistrate Judge Kenneth J.
Mansfield on February 28, 2019.
March 18, 2019, Plaintiff Bodyguard Productions, Inc.
(“Plaintiff”) filed a Complaint
(“Compl.”) against Defendant Alex Musante
(“Defendant Musante”). ECF No. 1. Plaintiff is
the owner of the copyright for the motion picture The
Hitman's Bodyguard (the “Work”). Compl.
¶ 7. The Complaint asserts claims against Defendant
Musante for direct copyright infringement and contributory
copyright infringement. Compl. ¶ 2. In essence,
Plaintiff alleges that Defendant Musante used BitTorrent, a
peer-to-peer file sharing protocol that is used to distribute
large files amongst internet users, to illegally copy the
Work onto his computer and redistribute it to other internet
users. See Compl. ¶¶ 29-59.
April 26, 2019, Plaintiff filed a Motion for Issuance of
Letters of Request (“Motion for Letters”), ECF
No. 11, seeking third-party discovery from three foreign
companies: a Dutch company called LiteServer B.V., a U.K.
company called IPSERVER LP, and an Australian Company called
Instra Corporation Limited. Motion for Letters at 2, 4.
Plaintiff suggests that Defendant Musante used a website
called Popcorn Time to illegally pirate the Work, and that
the identity of the Popcorn Time website operator is
essential to the resolution of Plaintiff's claims.
Id. The foreign companies allegedly provide
registration services to the Popcorn Time website.
proposed letters rogatory, which Plaintiff attached as
exhibits to its Motion for Letters, request “the name,
contact information, payment details and Internet Protocol
login history from April 25, 2016 to the present of the
registrant” of the website domain names popcorn-time.ch
and popcorn-time.to. See ECF Nos. 11-3, 11-4, and
11-5. The proposed letters rogatory indicate that Plaintiff
seeks the identification information of the Popcorn Time
website operators so that he can name them as defendants in
this lawsuit. See Id. The Court notes that Plaintiff
did not include this reason for the proposed third-party
discovery in the actual Motion for Letters. Defendant Musante
did not oppose Plaintiff's Motion for Letters.
13, 2019, the Magistrate Judge issued an Order Denying
Plaintiff's Motion for Issuance of Letters of Request
(the “05/13/19 Order”). ECF No. 16. The
Magistrate Judge noted that Plaintiff's counsel was
engaged in settlement discussions with Defendant Musante, and
that Defendant Musante had not yet appeared in the matter.
05/13/19 Order at 2. The Magistrate Judge concluded that
“[i]f Musante admits to, or fails to defend (as is
currently the case), the claims against him, the proposed
third-party discovery will be unnecessary, ” and for
that reason, denied Plaintiff's Motion for Letters.
05/13/19 Order at 2-3.
21, 2019, Plaintiff filed a Motion for Reconsideration of the
05/13/19 Order (“Motion for Reconsideration”).
ECF No. 17. Therein, Plaintiff argued that the third-party
discovery was necessary to join the operators of the Popcorn
Time websites as defendants and to request an injunction
ordering Defendant Musante's internet service provider to
block access to the Popcorn Time websites. Motion for
Reconsideration at 2. In a Minute Order dated June 19, 2019
(the “06/19/19 Order”), the Magistrate Judge
denied Plaintiff's Motion for Reconsideration because
Plaintiff raised neither of the aforesaid arguments in the
underlying Motion for Letters. ECF No. 20.
procedural posture of this case has changed considerably
since Plaintiff filed the Motion for Letters. On June 7,
2019, Plaintiff filed a First Amended Complaint
(“FAC”). ECF No. 18. The FAC asserts a direct
copyright infringement claim against Defendant Musante and
intentional inducement and contributory copyright
infringement claims against Doe Defendants 1-10. FAC ¶
1. On June 12, 2019, the Court entered an Order and
Stipulation for Dismissal, ECF No. 19, dismissing
Plaintiff's claims against Defendant Musante with
prejudice pursuant to a settlement agreement. Thus the only
defendants remaining in this case are Doe Defendants.
23, 2019, Plaintiff filed an “Ex Parte Motion for Leave
to Request Issuance of Order Granting Letters of Request
Prior to a Rule 26(f) Conference and Order Granting Said
Letters of Request” (“Early Discovery
Motion”). ECF No. 21. Therein, Plaintiff requests the
same three letters rogatory as in the Motion for Letters,
along with a forth letter rogatory for information from an
Icelandic company called ISNIC - Internet á
Íslandi hf. See ECF No. 21. Despite having
just filed the Early Discovery Motion, on July 2, 2019,
Plaintiff timely filed a Notice of Appeal of the Magistrate
Judge's 05/13/19 Order and 06/19/19 Order. ECF No. 22.
to Local Rule 74.1, any party may appeal from a magistrate
judge's order determining a non-dispositive pretrial
matter or, if a reconsideration order has issued, the
magistrate judge's reconsideration order on such a
matter. The district judge shall consider the appeal and
shall set aside any portion of the magistrate judge's
order found to be clearly erroneous or contrary to law.
See L.R. 74.1; see also 28 U.S.C. §
626(b)(1)(A); Fed.R.Civ.P. 72(a). The district judge may also
reconsider sua sponte any matter determined by a
magistrate judge. See L.R. 74.1.
the “clearly erroneous” standard, the magistrate
judge's ruling must be accepted unless, after reviewing
the entire record, the court is “left with the definite
and firm conviction that a mistake has been committed.”
United States v. Hinkson, 585 F.3d 1247, 1260 (9th
Cir. 2009) (citing United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)). The district judge may not simply
substitute his or her judgment for that of the magistrate
judge. See Hinkson, 585 F.3d at 1261. Instead, the
scope of review is limited “to determining whether the
 court reached a decision that falls within any of the
permissible choices the court could have made.”
Id. The magistrate judge's findings pass the
clear error standard if they are ...